Conclusions concerning the failure to provide proper particulars of identification
33Counsel for the defendants concedes, and I agree, that courts will only strike out an action for defamation due to failure to provide proper particulars in the clearest of cases. She submits that this is such a case.
34The particulars self-evidently confusing and prolix. This problem could normally be overcome by granting leave to amend, but counsel for the defendants reminds me that this is the plaintiff's sixth draft pleading in a motion that has been before the court for six months. The defendants still have no idea of the case they have to meet, and have been left to guess both the nature and extent of the case as pleaded.
35In extreme cases, where a party repeatedly fails to plead and particularise a case in accordance with court orders, the result may be loss of the action in its entirety. In McGrane v Channel 7 Brisbane Pty Ltd [2012] QSC 133 at [50] - [54], Daubney J struck out the entire proceedings, in circumstances where there had been less delay than the present, stating:
"[50] I am very conscious of the well established proposition that the "exercise of power to summarily terminate proceedings must always be attended with caution".
[51] It is also necessary for me to consider the interests of defendants, who are impelled to incur costs as a consequence of the commencement and service of proceedings, and the interests of the court which, as a public institution, must ensure that its necessarily limited resources are utilised efficiently and in accordance with the underlying philosophy expressed in UCPR r 5.
[52] This plaintiff has had numerous opportunities to present an intelligible case. He has failed to do so. Indeed, his claim has gone from being ludicrous to ridiculous.
[53] In my opinion, the plaintiff has squandered his opportunities to present a proper, comprehensible claim. I see no reason why the defendant should be put to further cost or why the court should be expected to devote further resources to this matter."
36The defendants have asked me to take this step in these proceedings as well, and have drawn my attention both to the principles enunciated by Daubney J and to recent similar decisions in New South Wales, including Al-Shennag v Woodcock [2013] NSWSC 696, where McCallum J, in the course of striking out the plaintiff's proceedings, noted at [16] that there had been no evidence at the s 7A trial that the matter complained of had been published to anyone with knowledge of the extrinsic facts. Her Honour's concern was that the costs of the litigation would be disproportionate to the damages awarded (at [111]). Her Honour went on to conclude:
"[110] The present case is unusual in that the plaintiff has not been dilatory. However, the discretion conferred by the rule is not confined to cases of delay caused by inaction. The prejudice faced by Mr Woodcock is that he must remain active in litigation which is slow to be brought to finality, not for want of any activity on the part of Mr Al-Shennag, but for want of any constructive activity. The prejudice of being required to face Mr Al-Shennag's numerous specious claims and allegations is manifest. As noted in Micallef, the rule contemplates the possible termination of a case without determination of an issue between the parties.
[111] In the present case, there is a more compelling reason for taking that course than in the case of mere dilatoriness. In my view, there is a substantial risk that, even assuming the plaintiff is successful, the costs of the action have already become disproportionate to any award of damages Mr Al-Shennag may receive. The claim for economic loss is substantial but most probably ambitious. Leaving that part of the claim aside, and for present purposes disregarding the defences, the cost of the ill-conceived applications Mr Al-Shennag has lost along the way is not warranted by any likely award of general damages for defamation and thereby offends the proportionality of costs principle enshrined in s 60 of the Civil Procedure Act."
37Both these cases involved litigants in person, who are afforded a degree of assistance and flexibility to enable them to prepare and present their case. Counsel for the defendant reminds me that determining these issues has required not only a series of hearings over the past six months, but analysis of hundreds of pages of pleadings and particulars over that period and a series of hearings to ventilate the issues, without the plaintiff getting any closer to the issues.
38There can be little doubt as to the course which would be taken if a legal practitioner made multiple amendment applications of this kind. In Dennis v Australian Broadcasting Corp [2008] NSWCA 37 at [24], [34] and [35], and again in McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308, the NSW Court of Appeal warned that there was a limit to the number of times that a party should be permitted to amend defamation proceedings. Counsel for the defendants submits that the plaintiff was given a final opportunity to amend her statement of claim after a series of poorly drafted claim. She has squandered that opportunity, and her whole claim should be struck out.
39Where a plaintiff is not named in the matter complained of, and doubt remains concerning whether the plaintiff is identified (Al-Shennag v Woodcock, supra, at [16] per McCallum J) there must be concern as to whether the litigation in question is proportionate in accordance with the principles set out in s 60 Civil Procedure Act 2005 (NSW) (Al-Shennag v Woodcock, supra, at [111]). There have been examples in England where determination that the action had become an abuse of process is against a background where rulings on meaning are given, as it may be possible to show that the proceedings would not achieve anything of practical utility for the claimant: Cammish v Hughes [2012] EWCA Civ 1655 at [60]; Euromoney Institutional Investor Plc v Aviation News Ltd & Anor [2013] EWHC 1505 (QB) at [142]-[144]. Those cases must be viewed with caution because Article 10 European Convention of Human Rights requirements have no place in Australian defamation law. However, while it has traditionally been the case that a plaintiff need only establish that one person saw, heard or read the matter complained of, decisions such as Al-Shennag v Woodcock, supra, show the increasing concern of the courts to take into account principles of proportionality, particularly having regard to the capped nature of general damages for defamation.
40In Younan v Nationwide News Pty Ltd [2013] NSWCA 335 ("Younan"), the Court of Appeal notes that a plaintiff must establish that "at least some readers of the article" (at [15]) were aware of the particularised extrinsic facts and, in addition, that those persons were "ordinary sensible readers" who could reasonably have come to that conclusion (at [17]), citing Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348.
41The factual circumstances in Younan were in some way similar to the present, in that the question of ownership of a particular property was the issue. However, Younan differs from the present case in three significant respects. The first is that the matter complained of in Younan related to one property, a boarding house, which had been the subject of extensive publicity following residents' deaths. The new owners were not named in the matter complained of, and the trial judge had wrongly accepted the argument that those who did know of their identity would also have known sufficient factual information to be aware that they had not been the owners of the time, this being the basis upon which identification was held not to have been established for one of the plaintiffs in Warren v Maxwell-Smith.
42In the present case, the identification is much weaker because it involves more than one property in more than one location, and the identification of the property consists essentially of pool party footage. The plaintiff has failed to specify with any clarity how she was identified (for example, by recognition of her swimming pool by persons who had visited the property and knew it was owned by her). This is particularly a problem for the second and third publications, where only brief flashing scenes of partygoers are shown, in the context of what is described as a geographically widespread problem.
43The second problem is that the plaintiff in Younan put forward alternative formulations of particulars of identification which the Court of Appeal considered capable of surviving the relatively low bar required of an identifying reader or viewer (at [25]).
44Thirdly, the imputations pleaded related that factor of identification into imputations capable of being conveyed. That is not the case here. On these three bases, Younan can be distinguished.
45It might be said that, somewhere in the particulars, there must be one person who could be taken to have seen one or more of the matters complained of and identified the plaintiff. Is it enough for one person to identify the plaintiff? That used to be the situation where s 7A jury trials determined all issues relevant to publication, including defamation. However, doubt was cast on this practice by Maxwell-Smith v Warren [2007] NSWCA 270, where witnesses gave evidence both at the s 7A hearing and separate trial that they identified one or both of the plaintiffs who commenced proceedings for a defamatory book of cartoons about the conduct of a case by unnamed lawyers. The defendants, who had lost that litigation, created a cartoon book of the case which they sold door-to-door in the small country towns where the plaintiffs were in business as a firm of solicitors. Identification evidence included another solicitor who purchased the book, the wife of one of the plaintiffs (who saw the book for sale at a weekend fair) and friends of both plaintiffs who were offered the book for sale or saw it for sale.
46Basten JA rejected these witnesses' identifications of each of the plaintiffs as insufficient; although it amounted to identification of the respective plaintiffs as individuals, "it may be doubted whether such extrinsic facts would have been widely known, even in a small community" (at [45]) and amounted to identification of the law firm rather than the individual plaintiffs. Although Younan v Nationwide News Pty Ltd does not refer to Maxwell-Smith v Warren, the Court's discussion of the principles for establishing identification does not suggest the existence of any such additional requirement.
47Accordingly, if the plaintiff had been able to set out in her particulars that a named person watched or downloaded any of these publications, and identified the plaintiff by reason of some reasonably based specific piece of information, that would have been sufficient. Unfortunately, this has not been done. It is necessary to set these apparently conflicting decisions out in some detail because Younan v Nationwide News Pty Ltd was handed down the day after I made rulings in these proceedings. As it happened, the defendants in these proceedings addressed me in accordance with the accepted principles espoused in Younan, as opposed to the additional requirements set out in Maxwell-Smith v Warren.
48The plaintiff's continued failure to plead and particularise her case in clear and simple language is difficult to comprehend. It is as if she wishes to cloak these particulars in secrecy so that she can elect how to plead identification at the trial. The defendants' legal practitioners have gone out of their way to assist the plaintiff by providing clear submissions and by meeting the requests of the plaintiff for copies of the matters complained of and by meeting her requests for further time to amend, including the request that this latest application be heard in Newcastle to suit the plaintiff's convenience, although defamation proceedings should in fact be case-managed in the Sydney registry. This is not a case where the opposing party should bear any of the blame for the repeated delays in preparation and presentation of the plaintiff's pleadings, which is of significance since the defendants now submit that they plaintiff should not be given a further opportunity to replead identification.
49The plaintiff has explained to me her wish to represent herself, and to plead her case as she sees fit. Having heard her submissions, I am of the view that there is no likelihood that fresh pleadings will cure the defects I have outlined above, for the same reasons as those expressed by McCallum J in Al-Shennag v Woodcock, supra, at [110].
50It was for these reasons that I struck out the first to fourth and seventh to eighth claims in the course of the hearing on 10 October 2013.
51Having set out my findings in relation to these claims, I next consider the issues of form and capacity of the imputations in the remaining four publications, namely the fifth, sixth, ninth and tenth matters complained of.